Despite the division and paralysis over Libya and Syria, R2P has strong prospects as a future foreign policy norm.

There are three reasons for believing that the whole R2P project, with all its implications for the status of state sovereignty, has not been irreversibly tarnished, and that, even for the hardest cases, Security Council consensus in the future is not unimaginable. The first is that there is effectively universal consensus on basic R2P principles, and a great deal of work going on in practice (albeit probably less in our region than elsewhere) to give them operational effect, for example through the development in many states, and intergovernmental organisations, of early warning and response mechanisms.  Whatever the difficulties being experienced in the Security Council, the underlying norm is in remarkably good shape in the wider international community. The best evidence of this is in the annual debates on R2P in the General Assembly since 2009, even those occurring in the aftermath of the strong disagreements over Libya.

In these debates, the old sovereignty language, which totally permeated the discourse of the global South in the 1990s, is simply no longer heard in this context. No state is now heard to disagree that every sovereign state has the responsibility, to the best of its ability, to protect its own peoples from genocide, ethnic cleansing, and other major crimes against humanity and war crimes. No state disagrees that others have the responsibility, to the best of their own ability, to assist it to do so. And no state seriously continues to challenge the principle that the wider international community should respond with timely and decisive collective action when a state is manifestly failing to meet its responsibility to protect its own people.

Second, the Security Council itself continues to endorse the R2P principle and use its language. For all the continuing neuralgia about the Libyan intervention and the impact of that in turn on Syria, the Council had, since its March 2011 decisions on Cote d’Ivoire and Libya, by last month endorsed not only nine presidential statements, but nineteen other resolutions directly referring to R2P, including measures to confront the threat of mass atrocities in Yemen, Libya, Mali, Sudan, South Sudan and the Central African Republic, and resolutions both on the humanitarian response to the situation in Syria and recommitting to the fight against genocide on the 20^th anniversary of Rwanda. There were just four Security Council resolutions prior to Libya using specific R2P language, but there have been nineteen since. While none of these have authorised a Libyan-style military intervention, together they do confirm that the rumours of R2P’s death in the Security Council have been greatly exaggerated. The kind of commitment that has been shown to supporting robust peacekeeping operations in Mali and Central African Republic in particular is very different to the kind of indifference which characterised the reaction to Rwanda and so many other cases before it.

Third, for all the division and paralysis over Libya and Syria, it is possible to see the beginning of a new dynamic in the Security Council that would over time enable the consensus that matters most – how to react in the Council on the hardest of cases – to be re-created in the future. The ice was broken in this respect by Brazil in late 2011 with its proposal that that the idea be accepted of supplementing R2P, not replacing it, with a complementary set of principles and procedures which it has labelled “responsibility while protecting” or ‘RWP’.

There were two core elements of the RWP proposal. First, that the kind of prudential criteria I have referred to should be fully debated and taken into account before the Security Council mandated any use of military force. And second, that there should be some kind of enhanced monitoring and review processes which would enable such mandates to be seriously debated by all Council members during their implementation phase, with a view to ensuring so far as possible that consensus is maintained throughout the course of an operation.

While the response of the P3 to the Brazilian proposal has so far remained highly sceptical, it has become increasingly clear that if a breakthrough is to be achieved – with un-vetoed majorities once again being possible in the Council in support of Chapter VII-based interventions in extreme cases – they are going to have to be more accommodating. There were some intriguing signs late last year (evident in official roundtables held in Beijing – which I attended – and in Moscow) that the two BRICS countries that matter most in this context, because of their veto-wielding powers, China and Russia, may be interested in pursuing these ideas further. Tensions between the major players are too high at the moment – not least between the Western powers and Russia over Ukraine – for early further progress to be possible, but there is a reasonable prospect of movement over the longer term.

There are bound to be acute frustrations and disappointments and occasions for despair along the way, but that should not for a moment lead us to conclude that the whole R2P enterprise has been misconceived. There is effectively universal consensus now about its basic principles – that there are now unequivocal limits to what sovereign states can acceptably do, or allow to be done, to their own populations. The only disagreement is about how those principles are to be applied in the hardest of cases. Given the nature of the issues involved, it is hardly unexpected that such disagreements will continue to arise, and certainly to be assumed that only in the most extreme and exceptional cases will coercive military intervention be authorised by the Security Council.

R2P is going to be work in progress for some time yet. But it is my genuine belief that no-one now really wants to return to the bad old days of Rwanda, Srebrenica and Kosovo, which would mean going back to either total, disastrous, inaction in the face of mass atrocity crimes, or, alternatively, action being taken to stop them but without the authority of the UN Charter, i.e. with the consent of the state concerned; with legitimate self-defence being invoked; or direct authorisation by the Security Council.

The Hon Gareth Evans AC QC FASSA FAIIA is a former Foreign Minister of Australia and Labor MP.

This is the third in a series of three articles publishing an edited version of the address by Professor the Hon Gareth Evans AC QC FASSA FAIIA at the inaugural Government House Lecture and Reception, Tasmania Branch, Government House, Hobart, 7 November 2014.

Click to read the first and second articles in the series. A copy of the full speech is available here.